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October 26, 2013

Terrific (though incomplete) analysis of the state and future of modern pot politics

This very interesting new piece in The New Republic authored by Nate Cohn and headlined "Marijuana is America's Next Political Wedge Issue: Pot politics, in 2016 and beyond," sets forth what strikes me as an astute (but incomplete) political analysis of modern marijuana reform realities circa fall 2013. Here are excerpts:

We’ve reached the point where there should be no surprise if a major
national politician embraces marijuana legalization. Without any
large-scale campaign on its behalf, surveys show that approximately half
of Americans now support marijuana legalization, including 58 percent
in a recent, but potentially outlying, Gallup poll. Regardless of the
exact support today, marijuana is all but assured to emerge as an issue
in national elections — it's only a question of how and when.

So far, neither party wants to touch the issue. The Democratic
governors of Washington and Colorado didn’t even support initiatives to
legalize the possession, distribution, and consumption of marijuana,
even though the initiatives ultimately prevailed by clear margins. It
took the administration ten months to announce — in the middle of the
Syria debate — that the Department of Justice wouldn’t pursue legal
action against Washington and Colorado. And on the other hand,
Republicans weren't exactly screaming about hippies and gateway drugs,
either.

Despite their apparent reservation to engage the issue, it’s hard to
imagine Democrats staying on the sidelines for too many more election
cycles. The party’s base is already on board, with polls showing a clear
majority of self-described Democrats in support....

To date, Democrats haven’t had many incentives to take a risk on the
issue. Democrats are already winning the winnable culture war
skirmishes, at least from a national electoral perspective, and they
have a winning demographic hand. And let’s get perspective: Marijuana
legalization may be increasingly popular, but it’s not clearly an
electoral bonanza. Support for legalization isn’t very far above 50
percent, if it is in fact, and there are potential downsides. National
surveys show that a third of Democrats still oppose marijuana
legalization. Seniors, who turnout in high numbers in off year
elections, are also opposed. Altogether, it’s very conceivable that
there are more votes to be lost than won by supporting marijuana. After
all, marijuana legalization underperformed President Obama in Washington
State.

Even so, Democratic voters will eventually prevail over cautious
politicians, most likely through the primary process. Any liberal rival
to Hillary Clinton in 2016 will have every incentive to support
marijuana legalization. Whether Clinton will follow suit is harder to
say, given that frontrunners (and Clintons) are generally pretty
cautious. It’s probably more likely that Clinton would endorse steps
toward liberalization, like weaker criminal penalties and support for
the legalization experiments in Washington and Colorado.

Republicans, meanwhile, are less likely to support legalization or
liberalization. To be sure, some Republicans will. They can take a
states’ rights position and the party has a growing libertarian bent,
perhaps best exemplified by Rand Paul’s willingness to support more
liberal marijuana laws. Republicans also have electoral incentives to
lead on issues where they can earn a few votes among millennials, who
pose a serious threat to the continued viability of the national
Republican coalition. If the Republicans can't adjust their existing
positions to compensate for demographic and generational change, which
(for now) it appears they cannot, then perhaps taking a stance on a new
issue, like marijuana, is the best they can do.

Of course, the problem is that a majority of Republicans are opposed
to legalization. Two thirds of Republicans voted against legalization in
Colorado and Washington, where one might expect Republicans be somewhat
more amenable than the nation as a whole. It probably doesn’t help that
marijuana is closely aligned with the liberal counterculture. It's also
possible that many pro-legalization conservatives don't identify as
Republicans at all, but instead might be independents....

With Republicans likely to remain opposed, marijuana could emerge as a
big cultural issue in the 2016 election. In particular, Clinton would
be well-positioned to deploy the issue. Her strength among older voters
and women mitigates the risk that she would lose very much support,
while legalization could help Clinton with the young, independent, and
male voters who could clinch her primary or general election victory.

But realistically, Clinton or another Democrat won't campaign on
marijuana legalization. For one, it’s most likely that the Democratic
nominee will support incremental measures....

It’s easier to imagine marijuana playing a role in the 2016
primaries. Many candidates will have incentives to use the issue,
whether it’s a cultural conservative using marijuana to hurt Rand Paul
among evangelicals in Iowa, or a liberal trying to stoke a progressive
revolt against Clinton’s candidacy. And once one party begins to debate
the issue, the other will almost certainly be confronted by the same
question. Marijuana won’t be decisive in a primary, but 2016’s primary
battles will shape the two party’s initial positions on the issue.

Yet marijuana’s big moment will probably come later, perhaps in 2024.
Legalization might eventually be popular enough for Democrats to use
the issue in general elections, first at the state level and then
nationally. As with gay marriage, the GOP’s obvious but difficult
solution is to take their own creed on states’ rights seriously, and
devolve the issue — and the politics — to the states. Compared to gay
marriage, which strikes at the heart of the evangelical wing of the
party, it should be easier for the Republicans to make an adjustment on
marijuana. But if they cannot, the GOP will again find itself on the
losing side of the culture wars.

I see lots and lots of merit to this analysis, and I find especially
intriguing the cogent observation that a older female politician like
Hillary Clinton might be especially well positioned to experiences far
more political benefits than costs from pro-marijuana reform positions.
(Indeed, I have been thinking for some time that the marijuana reform
movement needs a prominent female (and motherly) face and voice
comparable to Pauline Sabin,
the first woman to sit on the Republican National Committee, who was a
vocal advocate from repealing alcohol prohibition 80 years ago.)

But I think this commentary may be missing one key reality that I am
certain will impact dramatically the politics of pot over the next few election
cycles: the reality and perceptions of what ends up happening, good or
bad, in Colorado and Washington as recreational pot goes mainstream in
these two distinct states. If legalization is seen as a huge success
inside and outside these states over the next 12 months, especially in
swing-state Colorado, we should expect marijuana reform supporters to
see positive political possibilities as early as 2014 and I suspect it will become especially difficult for either party to be vocal opponents of marijuana liberalization and legalization realities. But if things
go poorly in these states, the modern reform politics neccesarily will take on a much
different character.

Labaoratories of democracy, here we come: buckle up politicians, we are likely in for a bumpy and unpredictable politicial ride.

October 25, 2013

Heading to law school alma mater for (rescheduled) reunion weekend

I am likely to be off-line much if not all of the next few days as I head up to Boston to attend my 20th reunion at Harvard Law School. I find it hard to believe it has been two decades since I graduated, and the weather forecast suggests I will have a good excuse to use the HLS tunnels to get around just like old times. I am not sure how many reunion events I will attend, but I am looking forward to showing my kids around Boston and Cambridge.

Notably, even this post has a criminal justice story behind it: this reunion weekend was originally schedule from this Spring but had to be cancelled because it was slated for the weekend that the hunt for the Marathon bomber had essentially shut down Boston.

October 24, 2013

Michigan Senate passes (prospective-only) Miller fix proposal

As reported in this local article, headlined "Michigan juvenile lifers: Senate moves to fix unconstitutional law, not offer resentencing," the Michigan legislature is finally making some progress on reforming unconstitutional aspects of its juvenile sentencing scheme. Here are the details:

The Michigan Senate on Thursday unanimously approved legislation that would allow some minors convicted of murder to avoid life in prison -- unless they are already behind bars and have exhausted appeal.

Senate Bills 318 and 319, now headed to the House for consideration, would update Michigan laws that currently allow mandatory life sentences without the possibility of parole for offenders who were under 18 at the time of their crime....

Under the Senate proposal, prosecutors could still seek life sentences without the possibility of parole for minors. But judges, after considering aggravating and mitigating circumstances, would be given new discretion to impose a prison term of between 25 and 60 years.
With good behavior, an individual convicted at 15 could have the chance to request a parole hearing and make their case for release when they reached 40.

The bills would not apply retroactively, meaning that "juvenile lifers" already behind bars and out of appeals would not have the opportunity for parole. Michigan is home to more than 360 juvenile lifers, the second-highest total in the nation.

State Sen. Bert Johnson, D-Detroit, proposed an amendment that would have added retroactivity to the legislation, but sponsoring Sen. Rick Jones, R-Grand Ledge, argued against it, and the amendment was shot down.
"The bill brings us into compliance with the Supreme court ruling," said Jones. "It does not go into retroactivity because they didn't address that."

Advocates say that juvenile lifers deserve the same opportunities for release as future convicts, but victim families have argued that opening old cases would also open old wounds.

The Supreme Court did not address the retroactivity question, and state and federal courts have offered different answers. U.S. District Court Judge John Corbet O'Meara has said Michigan juvenile lifers deserve a "fair and meaningful possibility of parole," but he has not yet determined what that possibility should look like.

State Rep. Joe Haveman, R-Holland, has introduced House measures that include retroactivity for juvenile lifers. But those bills, the subjects of an emotional hearing in August and opposition from Attorney General Bill Schuette, have not advanced out of committee.

Uh-oh: BJS reporting significant spike up in violent and property crime for 2012

Given the historic and unprecedented declines in US crime rates over the last 20 years, smart criminal justice observers knew it was only a question of when, not whether, crime rates were likely to at some point start going back up. A new report from the Bureau of Justice Statistics reveals that 2012 was the time for crime to start going back up. This BJS press release, titled ominously "For Second Consecutive Year Violent And Property Crime Rates Increased In 2012," reports these basic details:

Violent and property crime rates rose for U.S. residents in 2012, the Bureau of Justice Statistics (BJS) announced today. These estimates are based on data from the annual National Crime Victimization Survey (NCVS) which has collected information from victims of crime age 12 or older since 1973.

The violent crime rate (which includes rape or sexual assault, robbery, aggravated and simple assault) rose from 22.6 victimizations per 1,000 persons in 2011 to 26.1 in 2012. Crime not reported to police and simple assault accounted for the majority of this increase. Violent victimizations not reported to police increased from 10.8 per 1,000 persons in 2011 to 14.0 in 2012, and simple assault rates rose from 15.4 to 18.2 per 1,000. The rate of violent crime reported to police did not change significantly from 2011 to 2012.

The rate of property crime (which includes burglary, theft and motor vehicle theft) increased from 138.7 per 1,000 households in 2011 to 155.8 in 2012, primarily due to an increase in theft. The rate of theft victimization increased from 104.2 per 1,000 households in 2011 to 120.9 in 2012.

In 2012, 44 percent of violent victimizations and 54 percent of serious violent victimizations were reported to police. These percentages were not statistically different from 2011. The percentage of property victimizations reported to police declined from 37 percent in 2011 to 34 percent in 2012....

Other findings from the report include the following:...

Violent crime rates increased slightly in 2012 for blacks but remained stable for whites and Hispanics.

In 2012, residents in urban areas continued to experience the highest rate of violent crime. Residents in the West had higher rates of violent victimization than residents in other regions of the country.

The composition of violent crime remained stable in 2012. From 1993 to 2012, simple assaults made up approximately 70 percent of all violent victimizations.

To fully understand the impact and import of this new crime data, one needs to dig deeply in to all the numbers and definitions in this full 17-page BJS report. A review of that document highlights, inter alia, that even these spiked up crime rates being reported for 2012 are still well below the rates reported in 2003, and also that homicide rates appear to be still at record lows.

That all said, the "Uh-oh" in the title of this post is because I fear policy-makers and politicians will focus mostly on the BJS headline stating simply "For Second Consecutive Year Violent And Property Crime Rates Increased In 2012." A headline like that, especially if and when emphasized by those who oppose any progressive sentencing reform, could very well slow down or stop any developing federal sentencing reform momentum.

"How Much Does a Public Defender Need to Know About a Client?"

Earlier this month, the New Jersey Supreme Court issued a ruling in a case that didn't generate much publicity in the Garden State or anywhere else. It was just another opinion, about another indigent criminal defendant whose case was processed through a justice system that was relentlessly more concerned with efficiency than with justice. Sadly, it's not big news today when our nation's judges permit a person's fair trial rights to be violated in a way that both shocks the conscience and violates the Constitution.

In State v. Terrence Miller, four justices of the state supreme court — over a lone dissent — affirmed the conviction of a man indicted on drug charges who met his lawyer for the first time for a few minutes in a stairwell at the courthouse on the morning of trial. The lawyer had not tried a criminal case in seven years and had been appointed to Miller's case only four days before trial. He never spoke to any witnesses, or to Miller's former attorney, or to investigators in the public defender's office. He didn't know what his client would say on the witness stand.

Twice, the defense attorney asked the trial judge for a continuance so that he could adequately prepare for trial. Twice, the trial judge refused the request even though there were other cases he could have tried during that time. He had his docket schedule to worry about, the judge said, and the case was not complex. The judge was frustrated, court records revealed, with the "higher ups" in the public defenders office. He thought they were trying to play him. Lost in the middle of this turf war was Miller. He bore the brunt of the judge's frustration.

To their credit, prosecutors did not oppose the adjournment, but of course they did not complain when it was denied by the judge. The trial proceeded. Miller never had a chance to present his best defense, whatever it was, and was quickly convicted. All of this, the state supreme court declared, satisfied the defendant's constitutional right to counsel first expressed in Gideon v. Wainwright. Miller, the court said, got a fair trial. His trial judge, the justices concluded, should have delayed the trial but did not "abuse his discretion" when he didn't.

"Hippies, step aside please. Marijuana's Marlboro Man is about to take the stage."

The title of this post comes from the final lines of this notable new commentary by
Kevin Sabet of Project SAM at The Huffington Post headlined "Marijuana Opinion Polling: Be Cautious Amidst the Hype." Here are excerpts from the start and finish of the piece:

The special interest marijuana lobby -- who, like the tobacco industry, intend to make millions off of marijuana products by advertising and promoting their substance of choice -- can't stop talking about a recent Gallup poll finding that 58 percent of Americans support marijuana legalization. Media outlets are already calling "game over" on the debate, expressing that, like gay marriage, marijuana is an issue whose time has come.

Not so fast.
Though marijuana lobbyists, like other special interest groups, are masters at manipulating and overplaying findings favorable to their crusade -- and ignoring findings that are unfavorable (like the link between marijuana and IQ loss or mental illness), the rest of us should see through the smoke and mirrors. There are at least three major problems with using Gallup as a reliable marker for marijuana attitudes in the U.S....

Earlier this year, former Congressman Patrick J. Kennedy and I founded Project SAM (Smart Approaches to Marijuana), along with a slew of public health researchers and physicians -- from groups like the American Academy of Pediatrics, American Society of Addiction Medicine, and other prominent medical organizations -- to raise awareness about what the likely real result of legalization will be: this century's version of Big Tobacco. That's because millionaire ex-Microsoft executives are already launching, in their words, the "Starbucks of Marijuana." And multimillion-dollar private holding groups continue to raise money from investors eager to cash in on the "green rush."

People's image of marijuana legalization, however, is not consistent with this new corporate reality. Folks are still stuck in the 1970s -- they think of peace loving, drum playing, harmless pot smokers who just want to light up without the hassle of the law. And thanks to a marijuana industry casting doubt on any shred of scientific evidence (indeed mounds of it) that puts the drug in a bad light, confusion persists.

Hippies, step aside please. Marijuana's Marlboro Man is about to take the stage.

October 23, 2013

Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?

The silly title of this post is my first reaction to seeing this new report in the Wall Street Journal about the plans and priorities of US Senator-elect from New Jersey Cory Booker. The piece is headlined "On Booker's To-Do List: Revamp Drug Laws;
New Jersey's Senator-Elect Face Challenges Once He Takes Office," and here are the excerpts that caught my special attention:

Senator-elect Cory Booker sees revamping drug policies as one of the principal issues he can champion once he takes office in Washington, D.C., and he believes he can draw bipartisan support on the issue—even among those who supported his Republican challenger in the special-election race.

Mr. Booker said he has had initial conversations with Senate Majority Leader Harry Reid about his opinions on the issue—such as eliminating mandatory minimum-sentencing laws for nonviolent offenders and reducing incarceration rates as a way to help save tax dollars.

In the special-election race that wrapped up last week, Mr. Booker campaigned on working across the aisle despite the bitter partisan divide in Washington. Drug policy could be one area where he finds some success, according to those who work in the field. He singled out Sen. Rand Paul of Kentucky, a libertarian, as someone who sees eye-to-eye with him on the issue.

"I want to work with him," said Mr. Booker, about Mr. Paul, during an interview Tuesday at his campaign office in the city he led as mayor for seven years. "I take everybody in the Senate as sincere people who want to make a difference."

"Senator Paul would be pleased to work with any member who believes that mandatory minimum sentencing is unnecessary," the spokeswoman said. "He looks forward to Senator Booker's assistance on this important issue."

I am very pleased to see Booker talking up federal sentencing reform as he heads inside the Beltway, and I am especially excited to see him calling for a partnership with Senator Rand. Indeed, if the two of them truly seek to make sentencing reform a priority in the weeks and months ahead, the momentum toward reform may really become unstoppable.

And, of course, the notable irony of another person with the surname Booker shaking up federal sentencing perhaps mertis some special attention by clever wanna-be-headline-writing commentators.

Lots of newly published sentencing-related scholarhip worth checking out

Thanks to the always helpful Concurring Opinions and its compilation of of law review contents, I now see a whole bunch of recently published articles that I am adding to my (always growing) pile of sentencing-related scholarship reading list:

Should Congress tell all states and localities they many never employ certain ex-offenders in their public schools?

The question in the title of this post is prompted by this new AP story headlined "House Votes for School Checks for Sex Offenders." Here are is the backstory:

Public schools would be barred from employing teachers and other workers convicted of sexual offenses against children or other violent crimes under a bill the House approved Tuesday.

The measure would require school systems to check state and federal criminal records for employees with unsupervised access to elementary and secondary school students, and for people seeking those jobs. Workers refusing to submit to the checks would not be allowed to have school positions.

A 2010 report by the Government Accountability Office, the auditing arm of Congress, cited one estimate that there are 620,000 convicted sex offenders in the U.S.
It also found that state laws on the employment of sex offenders in schools vary. Some require less stringent background checks than others, and they differ on how people with past convictions are treated, such as whether they are fired or lose their teaching license.

The bill has run into objections from major teachers' unions like the National Education Association and the American Federation of Teachers. In letters to lawmakers, their criticisms included concerns that the measure might jeopardize workers' protections under union contracts.
In addition, the NEA wrote that criminal background checks "often have a huge, racially disparate impact" — a reference to critics' complaints that minorities make up a disproportionately high proportion of people convicted of crimes.

Despite those concerns, the House approved the measure by voice vote.
"Keeping children safe is not a partisan issue," said the chief sponsor, Rep. George Miller, D-Calif. "It's a moral obligation."

"Every school employee, from the cafeteria workers to the administrators, to janitors to the teachers, principals and librarians, that every one" is subject to background checks including the FBI fingerprint indentification system to the national sex offender registry, said Rep. Todd Rokita, R-Ind.

No one said they opposed the bill. But Rep. Keith Ellison, D-Minn., said that by imposing lifetime bans and ignoring the ability of people to overcome criminal backgrounds, "We do run the risk of doing a good thing, but doing too much of a thing." He said he'd continue seeking changes in the measure as it moves through Congress....

The bill would forbid public schools to employ people convicted of crimes against children including pornography, or of felonies including murder, rape, spousal abuse or kidnapping. It would bar school districts and state education agencies from transferring workers who have engaged in sexual misconduct with minors to another location.
The measure would also apply to contractors who work at schools.

Especially as this bill moves to the Senate, I wonder how tea party conservatives like Senators Cruz and Lee and Paul are likely to look at this seemingly significant intrusion by the federal government into state and local education and employment authority. If applied broadly, it sounds as though this bill would preclude someone convicted decades earlier of public indecency or child abuse from serving as a janitor or construction worker in any public school in any state. Whatever one might think about a state adopting such a rule for its own schools, but it seems like quite an intrusion into state authority for the feds to require this rule for all states and localities nationwide.

October 22, 2013

Mizzou revamps its lethal injection protocol and drug source for next execution

As reported in this new Reuters article, Missouri just announced new execution procedures to deal with lethal drug acquisition problems. Here are the basics and some national context:

A "compounding pharmacy" will supply lethal injection drugs for future executions in Missouri, the latest U.S. state to turn to the lightly regulated sector after major pharmaceutical companies refused to sell drugs for executions, the state said on Tuesday.

The Missouri Department of Corrections said in a brief statement that it would switch to using a single drug for executions, pentobarbital. Missouri had used a three drug protocol until recently.
"The department also announced that it has added a compounding pharmacy to its execution team," the statement said. Asked the name of the pharmacy, department spokesman David Owen said that information could not be disclosed.

Missouri is the latest of a half dozen U.S. states turning for lethal injection drugs to compounding pharmacies - which typically mix drugs for individual prescriptions and are subject to light federal government regulation.
The practice has drawn protests from opponents of the death penalty and advocates for death row inmates, who say the lack of regulation risks a botched execution....
Compounding pharmacies must register with state authorities but their products are not regulated by the Food and Drug Administration.

Texas this month executed its first prisoner using a drug from a compounding pharmacy. Other states which have turned to such suppliers or have said they may do so soon include Georgia, South Dakota, Colorado and Ohio.
A judge in Georgia this year granted a temporary stay of execution for a prisoner in part because of concerns about the quality of the compounded drug.

Missouri announced earlier this month that it would search for a new drug for executions after it came under pressure from drug makers, especially in Europe, not to use the drug propofol in executions.

The New Republic has published a somewhat related article here under the headline "Big Pharma May Help End the Death Penalty: Boycotts don't work against Texas executioners. But they could hurt pharmaceutical firms that make execution drugs."

As reported in this new Gallup page, headlined "For First Time, Americans Favor Legalizing Marijuana: Support surged 10 percentage points in past year, to 58%," the latest polling data suggests that marijuana reform developments over the last year in a variety of state have had a pretty dramatic impact on public opinion concerning marijuana laws and policies. Here are the basic details via the folks at Gallup:

For marijuana advocates, the last 12 months have been a period of unprecedented success as Washington and Colorado became the first states to legalize recreational use of marijuana. And now for the first time, a clear majority of Americans (58%) say the drug should be legalized. This is in sharp contrast to the time Gallup first asked the question in 1969, when only 12% favored legalization.

Public support for legalization more than doubled in the 1970s, growing to 28%. It then plateaued during the 1980s and 1990s before inching steadily higher since 2000, reaching 50% in 2011. A sizable percentage of Americans (38%) this year admitted to having tried the drug, which may be a contributing factor to greater acceptance.

Success at the ballot box in the past year in Colorado and Washington may have increased Americans' tolerance for marijuana legalization. Support for legalization has jumped 10 percentage points since last November and the legal momentum shows no sign of abating. Last week, California's second-highest elected official, Lt. Gov. Gavin Newsom, said that pot should be legal in the Golden State, and advocates of legalization are poised to introduce a statewide referendum in 2014 to legalize the drug....

Independents' growing support for legalization has mostly driven the jump in Americans' overall support. Sixty-two percent of independents now favor legalization, up 12 points from November 2012. Support for legalization among Democrats and Republicans saw little change. Yet there is a marked divide between Republicans, who still oppose legalizing marijuana, and Democrats and independents.

Americans 65 and older are the only age group that still opposes legalizing marijuana. Still, support among this group has jumped 14 percentage points since 2011.
In contrast, 67% of Americans aged 18 to 29 back legalization. Clear majorities of Americans aged 30 to 64 also favor legalization....

Whatever the reasons for Americans' greater acceptance of marijuana, it is likely that this momentum will spur further legalization efforts across the United States. Advocates of legalizing marijuana say taxing and regulating the drug could be financially beneficial to states and municipalities nationwide. But detractors such as law enforcement and substance abuse professionals have cited health risks including an increased heart rate, and respiratory and memory problems.

With Americans' support for legalization quadrupling since 1969, and localities on the East Coast such as Portland, Maine, considering a symbolic referendum to legalize marijuana, it is clear that interest in this drug and these issues will remain elevated in the foreseeable future.

The sentence of 115 months in prison plus two life sentences imposed on
Michael Scott by the district court represents a prime example of what may be called
“gilding the lily.” It is unreasonable and
excessive. For all practical purposes, the
roughly 39-year mandatory minimum sentence in this case — for a defendant who is
56 at the time of sentencing — would have
itself amounted to a sentence of life
imprisonment. I ask what more is required.
The sentence in this case is unreasonable
and simply represents an effort to send a
message of being tough on crime. But that’s
not the purpose of a sentence....

As an appellate judge, I add another observation. The federal courts are now
entering a new era of sentencing. Eric H. Holder, Jr., the United States Attorney
General, has recently called for a new approach to criminal sentencing in the federal courts. The Attorney General emphasized the harsh reality that, as it stands today, “our system is in too many respects broken.” Eric Holder, Attorney General of the United States, United States Department of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013),
available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html. Indeed, I agree with the Attorney General that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.”
Id.

The clearly excessive sentence imposed in
this case illustrates very graphically
the broken criminal justice system in the
federal courts. Here, had Scott received a
39-year sentence — which the parties agreed
was the mandatory minimum sentence in
this case — he would be in prison until he was
95 years old. Yet the district court felt
the need to impose a 115-month sentence followed by two life sentences. The district
court justified the sentence by emphasizing Scott’s “criminal history and the need to protect the public.” But just how much protection does the public need from a 95-
year-old man — assuming Scott were to live that long? According to the National Vital
Statistics Reports, at the time he was sentenced, Scott was expected to live for another 27 years, or until he is about 83 years old.... A 39-year sentence would have been more than enough to serve as a deterrent and an appropriate
punishment for a series of bank robberies, during which no one fired a gun and no one was physically injured. But instead, the district court imposed a substantially unreasonable sentence that is greater than necessary to accomplish the goals of sentencing. See 18 U.S.C. § 3553(a). This sentence is not justified and is improper and I will not affirm a sentence that is obviously too harsh
and imposed simply to appear tough on crime.

I would reverse and remand this case with
instruction to the district court to
impose a sentence no greater
than a 39-year sentence.

Can a state continue with execution plans for murderers still on death row after repeal of capital punishment?

The question in the title of this post is being considered today by the Connecticut Supreme Court, as explained in this AP article:

The Connecticut Supreme Court [today] plans to take up the appeal of Daniel Webb, who is currently awaiting execution for the 1989 kidnapping and murder of Diane Gellenbeck, a Connecticut bank executive.
Webb wants his death sentence overturned based on the 2012 law that abolished the death penalty in Connecticut, except for those who had already been sentenced to die.

His lawyers argue that the law violates Webb's constitutional rights to equal protection by treating him differently than others charged with similar crimes.
They say it also shows the death penalty is inconsistent with current standards of decency in Connecticut and no longer serves any valid purpose.

Given that many folks (including plenty of liberal-leaning ones) seem to believe that it is not constitutionally problematic to have federal crack defendants still subject to excessively long mandatory minimum prison sentences even after Congress reduced these sentences, I assume that most folks also likely believe that it is not constitutionally problematic to have Connecticut's murder defendants still subject to execution even after the state legislature repealed the death penalty. It will be interesting to see if a majority of the Connecticut Supreme Court shares such a perspective (and whether, if it does, federal courts will also reach the same conclusion during inevitable additional appeals).

"Can Obamacare Reduce the Cost of Corrections?"

The Affordable Care Act (ACA) has the potential to dramatically reduce costs associated with incarceration and prisoner re-entry, a U.S. Department of Justice (DOJ) official said today at a conference on health care and corrections at the John Jay College of Criminal Justice in New York City.

Local and federal governments spend about $80 billion annually on corrections — about $35,000 per inmate, but Amy Solomon, an advisor to the DOJ’s Office of Justice Programs, noted that those receiving continuing healthcare beyond incarceration are significantly less likely to be re-arrested.

Beginning in 2014, Americans who earn up to 133 percent of the federal poverty line and reside in 25 states that have agreed to a Medicaid expansion will qualify for access to the government insurance program. Those who earn up to four times the poverty line will qualify for federally subsidized insurance.
For impoverished former inmates re-entering their communities, Solomon said that could mean their first opportunities to pursue healthcare beyond bars.
“Continuity of care is essential if we want to see health and safety benefits,” Solomon said....

And for communities struggling with the ravages of addiction, mental illness and other issues often relegated to the corrections system, it could mean opportunities to find less costly alternatives to incarceration.
“I hope that judges will have viable community-based treatment options, so they won’t feel compelled to lock up someone with mental health issues,” Solomon said.

The key to diverting would-be inmates is separating low-risk offenders from those who are a high-risk, according to Elizabeth Glazer, former deputy secretary for public safety at the New York State Office of Criminal Justice Services.
In New York State, 8 percent of offenders account for 80 percent of crime, Glazer said at the conference....

But for both low- and high-risk inmates currently in prison, the task of meeting healthcare needs upon release can be tricky. Few continue care with the provider they had in prison and healthcare often drops off entirely.
New York recently unveiled a program called Medicaid Health Homes, which is designed to facilitate communication between all of an individual’s caregivers. For inmates re-entering local communities after prison stays, Glazer said the result will be an increased continuity of care.
“Done right, fewer people are going back to jail and prison, and that’s sort of where the bigger incentive is,” Glazer said.

Lamenting sex offender fear-mongering around Halloween

Writing over at Huffington Post, Emily Horowitz has this notable new commentary headlined "Manufacturing Fear: Halloween Laws for Sex Offenders." Here is how the piece starts and ends:

In North Carolina, a sheriff tells parents to check the online sex offender registry before allowing children to trick-or-treat. In Montana, a town offers a "trunk-or-treat" event where kids can get Halloween candy from trunks of cars in a parking lot to avoid potential danger. In New York, "Operation Halloween: Zero Tolerance" prohibits sex offenders from wearing masks or costumes or answering their doors on Halloween, and, as a parole source says, "There is certainly nothing more frightening than the thought of one of these men opening their door to innocent children." In Oklahoma, a city council is considering an ordinance forbidding sex offenders from decorating their homes or passing out candy on Halloween. In Orange, California, sex offenders can't answer their door or have outside lighting on Halloween, but an additional ordinance requiring window signs saying, "No candy or treats at this residence" was recently revoked after attorneys argued it was a form of cruel and unusual punishment.

Why worry about sex offenders on Halloween? Research shows no evidence of increased child sex abuse on Halloween and no evidence that a child was ever a victim of sexual abuse by a stranger while out trick-or-treating. This makes perfect sense, because government data shows the vast majority (about 93%) of sex crimes against children are not committed by strangers but by family members or acquaintances....

The false dichotomy of evil adults and innocent children and families prevents children from meeting their neighbors and becoming part of a community. Sex offenders are subject to more post-punishment restrictions than any other ex-offenders, and have lower recidivism rates. Halloween sex offender laws, and rampant media coverage of the threat of sex offenders on Halloween and throughout the year, is creating a neurotic and fearful generation of kids who grow up thinking they are helpless prey facing threats from real monsters. Children are safest when they know their neighbors, and Halloween is a good opportunity to meet others in the community. There are some actual threats to child safety on Halloween -- like an increase in pedestrian car accidents -- but sex offenders and poisoned candy aren't among them.

October 21, 2013

The title of this post is the headline of this afternoon report from the Los Angeles Times concerning the latest development in the long-running dickering over how California is dealing with a federal court order to reduce its prison population. Here are the details:

A panel of federal judges has given Gov. Jerry Brown an additional 28 days to come up with long-term solutions to the state's prison crowding problems.

In an order issued Monday, the judges moved the deadline for California to remove about 9,600 inmates from state lockups to Feb. 24, adding almost a month to their last deadline of Jan. 27. It previously was Dec. 31.
They also ordered the state to continue negotiating for solutions with lawyers representing California's 134,000 prisoners.

Monday was the deadline for a state appeals judge, Peter Siggins, who was assigned to mediate those confidential talks, to report on the two sides’ progress. Based on Siggins' confidential update and recommendations, the federal panel ordered the negotiations to continue, with another update due Nov. 18, the jurists said in their signed order.
The judges extended their first deadline and ordered the discussions after Brown asked them last month for three more years in which to reduce inmate numbers.

Continuing an important on-going debate in Illinois over use of mandatory minimum sentences to deal with the problem of violent gun crimes, the Chicago Sun-Times today has this extended editorial headlined "Mandatory-minimum sentencing doesn’t work." Here are excerpts:

Mandatory minimum sentences, touted by some as a cure for gun crimes, are little more than a power grab by prosecutors.
The intent of a mandatory minimum sentence is to make sure that people convicted of certain serious crimes get prison time and not a slap on the wrist, such as probation. But in the real world, that’s not what happens.

In the real world, this is what happens: Mandatory minimums, dictated by law, make it impossible for judges to use common-sense discretion when imposing sentences, so judges must nail some poor sap who simply made a foolish mistake with the same harsh sentence they would impose on a hardened criminal. But those mandatory minimums do nothing to reduce the ability of prosecutors to use discretion when deciding what charges — light or heavy — to file against a defendant. The indirect result is that prosecutors, not judges, set the sentence.

Mandatory sentencing is a fiction. It simply takes the decision-making for sentencing away from judges sitting in open court, where their actions can be questioned by higher courts, and hands that huge power and responsibility to prosecutors, who make their decisions behind closed doors, never to be challenged.

Legislation that might be called to a vote this week in Springfield would triple Illinois’ mandatory minimum sentence from one to three years for people convicted of the illegal use of a weapon, and it would broaden the kinds of crimes covered. An earlier version advanced out of committee in the spring legislative session, but ultimately died. The bill is backed by Mayor Rahm Emanuel, Police Supt. Garry McCarthy and the families of some gun crime victims. McCarthy says 108 shootings or murders so far in 2013 would have been prevented had the bill already been a law this year. He cited the case of Bryon Champ, convicted in 2012 of the unlawful use of a weapon, who is accused of taking part in a September drive-by shooting that injured 13 in Chicago’s Cornell Square Park.

Clearly, we all wish Champ — if in fact he was one of the drive-by shooters — had still been behind bars.
But what about other sorts of gun-possession offenders who would qualify for same mandatory minimum sentence?
Would we really send an 87-year-old woman who lives in a dangerous neighborhood to prison for three years for illegally keeping a gun as protection? Should state Sen. Donne Trotter really have gone to prison for three years when a gun was found in his luggage at O’Hare Airport?

It’s a question that will come up more often in Illinois when the concealed carrying of weapons becomes legal next year, and people — forgetting they are armed — try to carry guns into prohibited places. Should those people go to prison for three years as well?

The thinking behind mandatory minimum sentences is that prosecutors can be better trusted than judges to mete out tough punishment. Cook County State’s Attorney Anita Alvarez criticizes judges for being “quite lenient.” But most judges in the criminal court system are former prosecutors. And from 2010 through 2012, about 14,000 people were charged in three categories of unlawful use of a weapon, but the number of convictions was less than half of that. Changing sentences in cases where there is no conviction wouldn’t make any difference.

In analyzing the bill, the University of Chicago Crime Lab estimated that putting more people in prison would lead to 3,800 fewer crimes per year, including 400 fewer serious violent crimes.
But the Sentencing Policy Advisory Council calculates that had the stricter mandatory minimum law been in effect from 2010 through 2012, it would have boosted prison costs by about $393 million. A Department of Corrections note attached to the legislation last spring estimated the bill would result in an increase of 3,860 inmates, with additional operating costs of $701,712,300 and construction costs of $263,130,300 over 10 years. That money would have to come from somewhere. If that leads to smaller police forces or cutting out effective programs to prevent recidivism, we might wind up with more gun crime than before.

Julie Stewart, president of Washington-based Families Against Mandatory Minimums, noted in a Feb. 17 Chicago Sun-Times op-ed that Chicago’s murder rate actually jumped 16 percent after Illinois imposed its current one-year mandatory minimum in 2011. And a report released Thursday by the Northwestern School of Law Bluhm Legal Clinic concludes mandatory sentences would not deter crime....

On the national level, the Obama administration is trying to curb mandatory minimum sentencing, which is an idea that goes back to the 1980s. Illinois should be doing so as well.

I was actually starting to get a bit sad and worried that the US Supreme Court, after a few consecutive years of taking up a host of interesting and important sentencing issues, had decided this term to give little or no attention to the kinds of issues that serve as an obsession for me and this blog. But, thanks to two cert grants this morning, my belief that the Justices love the sentencing issues I love (or at least my faith that these issues are often too important for SCOTUS to ignore) has been restored. Here is the early report on these latest grants via SCOTUSblog:

The Supreme Court moved on Monday to settle a long-lingering issue: the
legal standard for judging whether a person is too retarded mentally to
be executed for a murder. That is the issue in Hall v. Florida(docket
12-10882). The Court also agreed to hear a second case, on the scope
of restitution as a penalty for bank loan fraud. That is the issue in Robers v. U.S. (12-9012).....

The new death penalty case from Florida raised this issue: “Whether
the Florida scheme for identifying mentally retarded defendants in
capital cases violates Atkins v. Virginia.”
In that 2002 decision, the Supreme Court had ruled that it is
unconstitutional under the Eighth Amendment to execute individuals who
are found to be mentally retarded. The Court, however, left it to the
states to decide who is mentally retarded and thus cannot be given the
death penalty.

In the new case, attorneys for Freddie Lee Hall contended that
Florida courts have adopted a “bright line” rule that a person is not
mentally retarded unless their IQ falls below 70. The state Supreme
Court found that Hall had an IQ of 71. In an earlier stage of Hall’s
case, before the Supreme Court had decided the Atkins case, he had been found to be mentally retarded, the petition said.

The Hall case is certain to get lots of attention, and perhaps justifiably so. That case is, arguably, the first "major" capital criminal procedure case to be taken up by the Supreme Court in a number of years (and certainly the biggest one I can think of since Justices Kagan and Sotomayor joined the Court). And a ruling in Hall will necessarily have a some impact on all post-Atkins litigation in all death-penalty states.

Robers, in contrast, will likely get very little attention because the case appears only focus on a relative narrow and technical issue as to the application of a federal restitution statute. Nevertheless, even if the briefing in Robers ends up focused only on narrow and technical issues, I suspect the white-collar bar (as well as corporate counsel in various industries) will want to keep an eye on this case because its resolution could impact an array of corporate crime and punishment issues.

As I will surely cover in future posts as these cases get briefed and argued in early 2014, Hall and Robers both could become "super sleepers" of the current SCOTUS Term because both cases have lurking Fifth and Sixth Amendment issues that could (but likely will not) grab some Justices' attention. In both cases, critical facts that impact a defendant's sentence exposure are to be assessed and resolved by judges. Though I do not believe Apprendi-type Fifth and Sixth Amendment claims are being pressed by the defendants in these cases, it is certainly possible that some amici and some Justices will contend that Fifth and Sixth Amendment jurisprudence ought to impact how the issues in Hall and Robers get resolved.

As reported in this local article, headlined "Bill Proposes Licensed Residential Sex Offender Clusters," legislators in Alabama are considering a new innovation in the monitoring of sex offenders. Here are the details:

Some Alabama State Representatives are hoping a proposed bill will change the laws surrounding where convicted sexual predators are able to live together.
Representatives Kurt Wallace and Paul Beckman are sponsoring the proposal that would make it against the law for sexual predators to live together unless it’s in what they’re calling a licensed, regulated residential sex offender cluster.

The proposed bill is similar to a bill passed into law earlier this year by the Alabama State Legislature. Alabama State Senator Arthur Orr is the sponsor of that bill. It encompasses Morgan County, while the proposed bill will cover the entire state.

In part Senator Orr’s bill made it against the law for convicted sex offenders to live in the same house. ”Studies show that if that is the situation there is much more proclivity for them to sexually offend others in the surrounding area,” Senator Orr says.
He says his bill was met with agreement from the Alabama Legislature and Morgan County residents. “Certainly the constituents who had small children who were living near this group sexual offender home, and they certainly wanted something done.”

The proposed bill by Representatives Wallace and Beckman would create what lawmakers call residential sex offenders clusters. The bill spells out what that means.
A residential sex offender cluster would be a tract of land where registered sex offenders could live together. An on-site monitor would also be required to live there to supervise the offenders. The clusters would have to be licensed and it would authorize the Department of Mental Health to make rules regulating the clusters.

If passed this proposed bill would require any sex offenders who wanted to live together to live in one of the clusters. It’s proposed if they violated that, it would be punishable by a felony charge.
Already Alabama has laws preventing convicted sex offenders from living near a school or their victims. Some officials argue it’s already hard enough for them to find a place to live and this proposed bill would make it even harder....

Lawmakers say the proposed bill would promote public safety, health and confidence.
They are expected to take this proposed bill up in the 2014 regular session.

October 20, 2013

"Alleyne v. United States, Age as an Element, and the Retroactivity of Miller v. Alabama"

The title of this post is the title of this intriguing Essay by Beth Colgan recently published on the UCLA Law Review's on-line supplement. The introduction previews the issues and argument in the piece:

The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles is cruel and unusual punishment in violation of the Eighth Amendment. The million-dollar question is whether it would do any good for the over 2000 juveniles who had previously been so sentenced. For those jurisdictions that follow or rely heavily on the dictates of retroactivity set out by the Supreme Court in Teague v. Lane, the touchstone of Miller’s retroactivity hinges on whether the rule it announced is substantive — and therefore retroactive — or procedural.

The Miller opinion provides no clear guidance. On the one hand, the opinion sounded in procedure, with the Court requiring “that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty.” On the other hand, the opinion sounded in substantive law, in that it required fundamental changes in criminal laws that mandate the imposition of life without parole in homicide cases where the crime was committed before the defendant’s eighteenth birthday. Prior to Miller, states and the federal government could require that a court impose a sentence of life without parole on a juvenile without consideration of the defendant’s youth. But the Miller Court rejected such mandatory sentencing, reasoning that “age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” a juvenile’s history of abuse, the role the juvenile played in the homicide, the existence of peer pressure, the difficulties juveniles have navigating the legal system, and juveniles’ unique capacity for rehabilitation are all constitutionally relevant and therefore a sentencer must have an opportunity to consider such facts at sentencing.

The quasi-substantive/quasi-procedural nature of the opinion created a conundrum for lower courts assessing the retroactivity of the decision. The answer to this puzzle may come from an unlikely source: the Court’s Sixth Amendment jury trial jurisprudence, and particularly its June 2013 interpretation of that right in Alleyne v. United States. Though unrelated to both juvenile sentencing and the question of retroactivity, the Alleyne Court did determine that where the existence of a fact dictates whether a mandatory minimum applies, the fact is, in effect, an element of the underlying offense. This Essay extrapolates from the Alleyne holding to argue that Miller’s requirement that sentencers consider age and its attendant consequences in cases involving juveniles — making age at the time of the offense a fact that triggers whether the mandatory minimum sentence of life without parole applies — converts age to an element of the underlying offense, rendering Miller a substantive rule that must be applied retroactively.

Why are murder rates so high in Puerto Rico and might criminal law be to blame?

I wonder why I rarely see coverage on your blog of the high crime rate in Puerto Rico, which has a per capita murder rate six times higher than the rest of the U.S (and, which, if it were on the mainland, would probably be occupied by the National Guard by now). The USAO has been borrowing state prosecutors to process criminals; jails are overflowing; the federal government seeks capital punishment in some very egregious cases although the local constitution and popular opinion opposes it. These seem to be items of relevance to Sentencing Law and Policy.... Please help to draw attention to the depressing, yet interesting, criminal issues facing the island.

Upon my request, this helpful reader suggested the following links to draw more attention to the "depressing, yet interesting, criminal issues facing" that lovely island:

A dated article from the Miami Herald explaining that federal prosecutors in Puerto Rico are more aggressively using the Hobbs Act and firearm offenses to take cases away from local prosecutors in order to increase prison times and hold people without bail (which is argued to increase victim cooperation).